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We Won't Fix Our Broken Sexual Culture In A Courtroom

Debating whether something is criminal or merely gross and unacceptable distracts us from the conversations needed to make things better.

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The #MeToo backlash has begun, and it’s bringing with it the language of the courtroom. Men no longer know if they can flirt with their coworkers, and “a lack of due process only adds to the uncertainty,” worried the Economist, while a New York Times editorial this weekend warned of an “insidious attempt by some women to criminalize awkward, gross and entitled sex.”

It’s not surprising that legal language is brought up almost reflexively when allegations are made: The guarantee of due process is at the core of our justice system, and it’s a right that we’re taught to cherish. Isn’t it also the least we can expect when a person’s career and reputation are on the line?

In short, it isn’t. Due process is essential when the power of the state is concerned. But when most instances of sexual misconduct will never go before a judge or jury, and most women are sharing their stories as part of a national conversation, it makes no sense to apply a courtroom concept in such a fundamentally different setting.

Equally useless is the impulse to dismiss stories of behavior that doesn’t reach the level of criminality. When we describe aggressive, arrogant, and coercive sex as merely the common experience of every woman who has had sex, we dodge a critical conversation about changing cultural norms and understandings about sex and consent.

That’s the conversation we need to have — and the one we are already having. And it needs to happen in the public square, not a courtroom.

In a courtroom, constitutional guarantees protect the accused from a deceitful accuser or an overzealous prosecutor, ensuring things like the right to view evidence, cross-examine witnesses, and be represented by a lawyer. When the government is asking a judge to lock you in a cage, these types of guarantees are essential. But that’s not what’s happening when someone shares their story with the world. They’re asking to be heard and believed.

Over my career as a California prosecutor, a Department of Justice analyst, and an advocate for victims of sexual assault, I have worked with numerous survivors who have told me the pain of not being believed. Being made to feel crazy is often more painful than the abuse itself, they have said. Most survivors will never see their abuser jailed, and many don't even want them jailed. What they want is to be believed, and they want to make sure others don’t have to experience what they did. This was the motivation of many of Harvey Weinstein’s victims.

Believing survivors of sexual harassment and violence is about understanding the pain and silence they are subjected to. For many of the survivors I have worked with, this pain is lifelong — never being able to sleep with their back to an open door, or waking up screaming from nightmares. Believing them is a way for our society to take responsibility for the culture we have created, which allows sexual violence to persist: leaving boys to learn about sex from porn and Hollywood and teaching girls not to speak up about their needs.

The truth is that Harvey Weinstein, Roy Moore, Russell Simmons, and Kevin Spacey are the tip of the iceberg, and their fame was the only reason we listened to their victims. Beneath the surface is an ocean of abusive behavior by people who will never be named — our neighbor, our coworker, our father, our friend, our priest.

The idea that we can’t evaluate the truth without a uniform judicial procedure or concrete definition of consent simply plays to our desire to close our eyes and pretend sexual misconduct isn’t there. The call for due process isn’t a discussion about who is telling the truth — it’s about a society programmed not to believe women. Believing them, for once, is hitting the reset button.

If we can reset how we view these people’s stories, we can take out the background noise and truly hear the cacophony of women and men telling us about a plague in our communities. When they come forward and are believed, it illuminates a pathway others can follow. Over the past decade, I have witnessed numerous individuals share their stories and seen how this inspires others to say for the first time, "that happened to me too." Knowing you are not alone is transformative and healing.

I have said "I believe you" countless times to people who, until that moment, had never had anyone say those words to them. It’s a mistake to see so many people finally speaking out and respond that we need a better system to identify who is lying, or a better instinct for what is criminal and what is merely unacceptable.

Our goal should be to stop this from happening in the first place, and I doubt anyone voicing due process or privacy concerns disagrees. But if we want to get there, we need to combat the paralyzing cultural norms that prevent us from having real conversations about what happens in our bedrooms, offices, and streets. If we can start believing victims, we can start the much more difficult conversation.

It’s time to talk about reaching our young people earlier, with messages about healthy relationships in middle schools, high schools, and colleges. It’s time to engage parents, who were never taught about safe sex, let alone consent, about how to engage their children in healthy talks about sex and respect. Let’s talk about workplace cultures and how they can stop laying fertile ground for sexual harassment and discrimination. Let’s talk about “gross and entitled sex,” and why so many men, from college to middle age and beyond, seem interested in little else.

Stories of coercive and aggressive sexual encounters might make us uncomfortable and angry at the storyteller, simply because it’s making us reflect on many of our own uncomfortable, arrogant, and coercive experiences. We don’t need to be afraid of them or shut them down.

Talk of “due process” or criminality diverts us from these conversations. It takes us further from understanding the lived experiences of survivors, and further from productive discussions about stopping men from exerting power and control over others through sexual abuse. In court, you have a right to due process. But in public life, when a woman finally breaks the silence that has loomed over far too many of us, she has a right to be believed. And we have an obligation to listen. ●

Moriah Silver is a former California prosecutor who has worked on issues of gender-based violence for over a decade. As a law clerk at the Santa Clara County District Attorney's Office, she worked on the Brock Turner case, and at the US Department of Justice, she was instrumental in creating and implementing a policy on domestic and sexual violence in the workplace for all federal government agencies. She now runs a consulting firm, MSilver Consulting, providing strategic solutions to end gender-based violence.